Law Student Response to President Salovey’s May 3rd Letter

To the Yale Community,

As students of labor law, we are troubled by a number of assertions in President Salovey’s May 3 email, “Update on Graduate Student Unionization,” regarding the concerted action that eight graduate teachers have taken in response to the university’s refusal to honor its obligations under federal labor law.

First, we disagree with the university’s suggestion that graduate employees’ “demands” for a place at the bargaining table are excessive or unreasonable. Yale may dislike the department-unit strategy, and indeed spent months in costly litigation delaying the election on that basis, but the university ultimately lost that fight before the Regional Director of the National Labor Relations Board (NLRB). In February, elections were held at the university, and graduate teachers in eight departments chose Local 33 as their bargaining agent. President Salovey’s email does not suggest that these elections were improperly conducted or otherwise do not reflect the true sentiments of the graduate employees in the units, nor has the university raised this objection through the formal channels available, nor would such an objection obviate the university’s duty to bargain while their appeal is heard. Yet the university continues to resist the department-unit strategy.

Yale’s refusal to bargain with the certified representatives of its graduate workers in these eight departments is a breach of its legal duties under federal law. It is an unfair labor practice to “refuse to bargain collectively with the representatives of his employees.”[1] When graduate teachers and their allies demand that the university negotiate, they are not “short-circuiting” the legal process, as President Salovey claims; they are insisting that the administration obey the law. That the administration has appealed the Regional Director’s decision does nothing to excuse Yale’s duty to bargain,[2] of which the university is currently in violation. As a federal court of appeals has explained, “[T]he employer’s duty to bargain runs from the date of the election . . . . [t]he purpose of [which] is to prevent employers from postponing their bargaining obligation through dilatory tactics and spurious objections.”[3]

Second, President Salovey’s characterization of the choice to petition for departmental units as “unprecedented in higher education” is misleading. The Columbia decision, which recognized the right of graduate teachers and researchers at private universities to file for union representation, was issued less than a year ago. In that time, graduate workers at only a handful of campuses have launched union drives. Each of these campaigns is, in one way or another, “unprecedented in higher education.” Further, the legal test that the Regional Director applied to uphold Local 33’s departmental strategy, rooted in a case called Specialty Healthcare,[4] rests on substantial precedent.[5] In Specialty Healthcare, the NLRB held that when a group of workers petition for a union election in a unit defined along lines drawn by the employer (as here, where Yale created the department structure), and the workers in the unit share a community of interest (as all graduate employees in a department clearly do), the unit is appropriate so long as the employer cannot show that workers outside the unit share an “overwhelming community of interest” with those inside. This test recognizes the democratic right of workers to decide the units in which they organize and bargain with their employers, absent very strong reasons that would compel a different unit definition. Yale spent a significant sum of money to hire a prestigious union-busting law firm, which ably advanced numerous counter-arguments — and lost. The departmental-unit approach is grounded in well-established precedent that was applied in this case.

Additionally, President Salovey mischaracterizes the future role of a union representing the eight departments as “undemocratic.” To the contrary, graduate employees in these eight departments voted, in free and fair elections supervised by the NLRB, for the union to be their bargaining agent. Local 33 now asserts only that the law requires the university to negotiate with the union on behalf of the employees in those eight departments where it was duly elected. Describing this process as undemocratic is analogous to claiming that Connecticut elections are undemocratic because residents of New York are not allowed to vote. Similarly, President Salovey’s 9% turnout figure is patently misleading insofar as it counts individuals from departments where elections were not held. The turnout in departments where elections occurred was in fact 283 out of 322 eligible voters or 87.9%[6] — far from a “small group of activists.”

Yale has spent more than twenty years resisting the right of its graduate teachers to democratically elect representatives and collectively bargain with the university. That the administration now claims the mantle of democracy in refusing to honor its obligations under federal law, and to further delay the process of simply sitting down at the bargaining table with those certified representatives, is a cynical bait-and-switch. Yale must end its dilatory tactics, begin negotiations, and obey the law.

Sincerely,

Will Bloom ’17, Dana Bolger ’19, Jordan Laris Cohen ’17, Charles Du ’17, Amit Jain ’18, Zak Manfredi ’17, Kate Redburn ’18, and Emily Villano ‘19

[1] 29 U.S.C. § 158(a)(5).

[2] See Morio v. North American Soccer League, 501 F. Supp. 633, 639 (S.D.N.Y. 1980) (“The fact that [the employers] were pursuing their right to appeal did not, absent a stay of the Board’s order, obviate their duty to bargain . . . .”); see also NLRB v. Parents and Friends, 879 F.2d 1442, 1456 (7th Cir. 1989) (“[T]he employer’s duty to bargain commences once the union is certified.”).

[3] NLRB v. 1199, 824 F.2d 318, 319–20 (4th Cir. 1987).

[4] 357 NLRB №83 (2011).

[5] See, e.g., Macy’s Inc., 361 NLRB №4 (2014); Guide Dogs for the Blind, 359 NLRB №151 (2013); Northrop Grumman Shipbuilding, Inc., 357 NLRB №163 (2011); Vanderbilt Univ. v. SEIU Local 205, 10-RC-193205 (NLRB Region 10, 2017).

[6] See NLRB, Tally of Ballots, https://www.nlrb.gov/news-outreach/graphs-data/tally-of-ballots?f[0]=date%3A02/23/2017%20to%2002/23/2017&f[1]=r%3ARegion%2001%2C%20Boston%2C%20Massachusetts.